Fine but not fair: fines and disadvantage, Justice issues paper 3Cite this report

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There are 17 000 offences in approximately 100 legislative instruments for which a penalty notice or `fine` can be issued in New South Wales (NSW).1 While many fines are for traffic-related offences, fines are also collected for offences such as fare evasion on public transport, littering and failing to `move on` when directed by a police officer. The Law and Justice Foundation`s Access to Justice and Legal Needs (A2JLN) Research Program has identified the disproportionate impact fines can have on the lives of disadvantaged people, particularly those who are homeless, mentally ill, young, on low incomes, or in or recently released from prison. Drawing upon our research, this paper illustrates how these groups are both more vulnerable to being fined and how debts arising from fines can further compound existing disadvantage. It details the complexity of the fine enforcement system in NSW and examines options to lessen the impact of fines and fine enforcement on disadvantaged people.

Recent changes to the NSW Fines Enforcement System

In December 2008, a set of changes were made to the fines enforcement system in NSW through the Fines Further Amendment Act, 2008 (NSW). The amendments include: the option for officers to provide an official caution in place of a penalty notice in certain circumstances; more flexible payment options for fines; a two-year trial of a scheme to allow disadvantaged people to apply for a “Work and Development Order” in place of a fine; and the option for fines to be partially written off. In addition, the NSW Law Reform Commission will conduct a review of penalty notice amounts to ensure fines are consistent across government.

These changes — the latest in a series of changes to the fine enforcement process in NSW — occurred after this paper was prepared for publication. Consequently, the fines enforcement process described in this paper is a process that was in place prior to the December 2008 changes. While many aspects of the process have remained the same, the new initiatives specifically aim to address the systemic difficulties that fines present to very disadvantaged people. Indeed, some of the options proposed by advocates and agencies, and outlined in this paper, have been included among the changes. Notably, however, the full impact of these amendments will not be evident for some years to come.

Despite the recent amendments to the fine enforcement system in NSW, we are publishing this paper as it was written prior to the changes. This is because the paper illustrates how fines and fine enforcement can present significant access to justice issues for disadvantaged people, issues which are not unique to NSW or even Australia. The paper also highlights the importance of redressing this disadvantage and why reforms to the fine enforcement system operating prior to December 2008 were necessary. Furthermore, by presenting a ‘snapshot’ of the impact of fines on disadvantaged people immediately prior to the December 2008 changes, the paper provides a useful baseline for monitoring the impact of fines on disadvantaged people in NSW into the future.